The Compatibility of the ISDS Mechanism under the Energy Charter Treaty with the Autonomy of the EU Legal Order

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KARAYİĞİT M. T.

European Foreign Affairs Review, cilt.29, sa.1, ss.85-114, 2024 (Scopus) identifier

  • Yayın Türü: Makale / Tam Makale
  • Cilt numarası: 29 Sayı: 1
  • Basım Tarihi: 2024
  • Doi Numarası: 10.54648/eerr2023031
  • Dergi Adı: European Foreign Affairs Review
  • Derginin Tarandığı İndeksler: Scopus, Academic Search Premier, International Bibliography of Social Sciences, Business Source Elite, Business Source Premier, EBSCO Legal Collection, EBSCO Legal Source, Political Science Complete, Public Affairs Index, Worldwide Political Science Abstracts, DIALNET
  • Sayfa Sayıları: ss.85-114
  • Anahtar Kelimeler: Autonomy of the EU Legal Order, Extra-EU Arbitration, Intra-EU Arbitration, Investor to State Dispute Settlement, the Energy Charter Treaty
  • Marmara Üniversitesi Adresli: Evet

Özet

The article scrutinizes the ex-post constitutional compatibility with the autonomy of the EU legal order of the Investor to State Dispute Settlement (ISDS) mechanism established in Article 26 of the Energy Charter Treaty (ECT). Whereas the compatibility of intra-EU aspects of ECT arbitration is examined primarily in the light of the EU Court of Justice’s (CJEU) Achmea and Komstroy judgments, the compatibility of its extra-EU aspects is examined primarily in the light of its Opinion 1/17. Since those Court decisions are indeed in line with the previous case-law, the article does not need to delve into earlier case-law. Although the issue is analysed from the standpoint of EU law, awards of the arbitral tribunals before which the ECT is invoked have been taken into consideration especially to ascertain whether the CJEU’s concerns for preserving the autonomy of the EU legal order against any possible legal effects of these awards were justified. The article also analyses the principal options to remedy the incompatibility of the ISDS mechanism under the ECT with the autonomy of the EU legal order.